Commonwealth Employees' Rehabilitation and Compensation Act 1988 - Notice of Declarations and Specifications (Notice No. 1 of 1990)

The instrument rests on two key legal concepts drawn from the Act: “Commonwealth authority” and “employee”. The Act defines “Commonwealth authority” in subsection 4(1) to include bodies corporate that are incorporated under a law of a Territory and in which the Commonwealth has a controlling interest, but only if they are declared by notice to be bodies to which the Act applies. This notice exercises that power for AIDC Ltd. The concept is important because employees of a Commonwealth authority are treated as employees of the Commonwealth for compensation purposes, and the authority itself may be the employer for premium and liability purposes under the Act. The second concept is “employee” under subsection 5(6) of the Act. The Act’s primary definition of employee in section 5 covers persons who are employed by the Commonwealth or a Commonwealth authority under a contract of service or apprenticeship, plus certain office holders and members of the defence force. Subsection 5(6) gives the Minister power to declare by notice that specified classes of persons are taken to be employed by the Commonwealth or a Commonwealth authority, and to declare that the performance of specified acts constitutes that employment. This is a broad deeming power that allows the scheme to extend to persons who are not in any conventional employment relationship. The notice uses a table format: the first column describes the class of persons (National Gallery volunteers and CSIRO associates), and the second column describes the class of acts (performed in connection with rendering assistance or services). Only when a person in the class performs an act in that second class are they deemed to be an employee, and only at that time. This means coverage is activity-specific: the person is not an employee for all purposes, only while performing the designated acts. The concept of “control or direction of a Commonwealth officer” is central: it ensures that the work is performed under the authority’s supervision, similar to a conventional employment relationship. The notice also specifies that the persons must not receive any remuneration other than reimbursement of expenses (for the National Gallery volunteers); the CSIRO class does not explicitly mention remuneration, but the original policy intent was to cover unpaid or minimally compensated affiliates. The instrument is a delegated legislative instrument; it does not amend the Act but operates under it. Abbreviation keys in the compilation indicate that the 2015 amendment to the first column of the table was the only substantive change to the notice. The compilation also notes that the law is as in force on 20 October 2015, and uncommenced amendments are not shown.

This notice directly affects three distinct groups: (1) AIDC Ltd, a body corporate in which the Commonwealth had a controlling interest, incorporated under ACT law. By being declared a Commonwealth authority, AIDC Ltd and its employees become subject to the Act’s compensation and rehabilitation regime. This means AIDC Ltd must comply with the Act’s obligations regarding workplace safety, claim management, and premium payments (or be covered by Comcare’s premium system). However, AIDC Ltd may have since been renamed, privatised, or wound up; if it no longer exists, the declaration may be spent. The notice itself does not indicate whether the declaration still has practical effect. (2) Persons who assist in running the National Gallery of Australia under the control or direction of a Commonwealth officer without receiving remuneration (other than expense payments). These are volunteers. The notice deems them employees of the Commonwealth while they perform acts connected with that assistance. This means they are covered by the Act for workers’ compensation if they sustain injury during such activities, but also they may be subject to the Act’s obligations (such as reporting injury, cooperating with rehabilitation). The Commonwealth (through the National Gallery) becomes liable for their compensation and must treat them as employees for workplace health and safety duties under the Act. (3) Persons who render services to CSIRO in specified categories: Honorary Fellows, Post-retirement Fellows, Post-doctoral Fellows, Volunteer Fellows, Guest Workers, postgraduate students, PhD students, and vacation scholars, when acting under the control or direction of a Commonwealth officer. This category includes a wide range of researchers, students, and visitors who are not conventional employees. They gain compensation coverage for work injury while performing their research or service activities. CSIRO is the relevant Commonwealth authority; it must ensure that these individuals are covered, that premiums (or equivalent funding) are provided, and that the individuals understand their rights and obligations. The 2015 amendment expanded this category to include postgraduate students, PhD students, and vacation scholars, suggesting that prior to that, such students were not covered. The amendment may have been prompted by recognition that these persons face similar workplace risks as employees but lacked statutory coverage. Indirectly, the notice affects Comcare (the scheme administrator), insurers, and the taxpayer, as compensation payments and scheme overheads are funded through the Commonwealth budget or premiums paid by authorities. It also affects the individuals’ access to common law remedies: because the Act provides an exclusive statutory compensation scheme, deemed employees generally cannot sue the Commonwealth or the authority for damages at common law for work-related injuries. The notice thus trades potential common law rights for statutory benefits.

The notice itself does not create duties; it triggers the application of duties and rights under the Act. For deemed employees, the primary right is the entitlement to compensation for work-related injuries and diseases under the Act’s provisions, which include weekly payments for incapacity, medical expenses, permanent impairment benefits, and death benefits for dependants. They also have the right to rehabilitation and to have their claims determined in accordance with the Act. However, these rights are accompanied by duties: deemed employees must give notice of an injury as soon as practicable (section 53 of the Act), must submit to medical examinations (section 57), and must comply with rehabilitation programs (section 40). Failure to comply can result in suspension or reduction of compensation. They must also not engage in fraud; penalties apply. For the Commonwealth or the relevant authority, the key duties are: to provide a safe workplace (the Act imposes a duty on employers to take all reasonably practicable steps to protect the health and safety of employees, including deemed employees); to pay compensation promptly when liability is accepted; to manage claims in accordance with the Act; and to report injuries to Comcare. The authority (or the Commonwealth) is also liable to pay premiums to Comcare to fund the scheme, based on claims experience and risk. The deemed employment is not full-time or continuous; the duty to provide compensation only arises when the person is performing an act in the specified class. For National Gallery volunteers, this is only while they are actually assisting in running the gallery under direction. For CSIRO associates, only while performing acts in connection with rendering services. This creates a potential administrative burden: the authority must determine at any given time whether a person is within scope, especially if the person does both covered and non-covered activities. The Act’s definition of injury (including disease) may require that the injury arise out of or in the course of the deemed employment. If injury occurs while the person is doing something unrelated to the specified acts, coverage may not exist. The notice also implicitly gives the Minister the power to revoke or amend the declarations, but that is not a right of affected persons. Overall, the instrument expands the pool of persons entitled to compensation, but also subjects them to the Act’s constraints, including the exclusivity provision (section 47) which bars common law claims.

The notice does not contain its own penalty provisions; enforcement flows from the Act. The Act establishes a range of criminal and civil penalties for non-compliance. For example, if a deemed employee makes a false or misleading statement to obtain compensation, they can be prosecuted under section 72 of the Act, which carries a penalty of imprisonment for up to 12 months and/or a fine (currently 60 penalty units under the Crimes Act). Similarly, if an employer (the Commonwealth or authority) fails to pay compensation when required, the employee may seek recovery through the Administrative Appeals Tribunal or the Federal Court. The Act also imposes obligations on employers to notify Comcare of injuries and to keep records; failure can result in fines. Comcare has inspection and investigation powers under the Act and can issue improvement notices or prohibition notices under the Work Health and Safety Act 2011 (Cth) (which applies to Commonwealth workplaces). For deemed employees, if they refuse to participate in a rehabilitation program without reasonable excuse, their compensation may be reduced or suspended under section 40. The Act also has provisions for recovery of overpayments and for deductions from compensation for contributory negligence in limited circumstances. In practice, the main enforcement risk for an authority is inadvertent failure to treat a deemed employee correctly, leading to a claim dispute or a Comcare compliance action. For individuals, the risk is that they may not realise they are covered and thus fail to claim, or conversely, may claim for injuries that occurred outside the scope of the declared acts. The 2015 amendment specifically added PhD students and vacation scholars; prior to that, if a PhD student was injured while performing services for CSIRO, they would not have been deemed employees and would have had no claim under the Act. The amendment closes that gap. The notice itself is a legislative instrument subject to disallowance by Parliament; it could be repealed or amended, but while in force it has the same binding effect as a regulation.

This notice operates exclusively within the framework of the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (now known as the Safety, Rehabilitation and Compensation Act 1988). It does not interact directly with state workers’ compensation schemes, because the Commonwealth scheme is constitutionally separate. Persons deemed employees under this notice are covered by the Commonwealth scheme, not by any state scheme, even if they reside in a state. The notice also interacts with the Work Health and Safety Act 2011 (Cth), which imposes duties on Commonwealth bodies to ensure the health and safety of workers, defined broadly to include volunteers and other persons working under the direction of the body. The notice’s deeming of persons as employees may affect whether they are considered “workers” for WHS purposes, although the WHS Act has its own definitions. There is likely to be overlap: persons deemed employees under the compensation Act are almost certainly workers under the WHS Act. The notice also interacts with the Income Tax Assessment Act 1997: deemed employees are treated as employees for PAYG withholding purposes if they receive remuneration, but for volunteers without remuneration no tax implications arise. The Act’s exclusive remedy provision (section 47) prevents deemed employees from bringing common law damages actions against the Commonwealth or authority for work-related injuries. This interacts with the general law of torts and may override any other legislation that would otherwise permit such actions. The notice may also interact with superannuation legislation: deemed employees may not be entitled to superannuation contributions because they are not receiving salary or wages. The Act’s definition of “normal weekly earnings” for compensation calculation may require specific treatment for unpaid persons. The 2015 amendment notice (Safety, Rehabilitation and Compensation (Definition of Employee) Amendment Notice 2015) is itself a legislative instrument that amended this 1990 notice; it shows the interaction between successive legislative instruments under the same Act. Finally, the notice is subject to the Legislation Act 2003 (Cth) for registration, tabling, and disallowance procedures. It is a disallowable instrument, so Parliament can override it.

The notice has a simple amendment history. It was originally made on 29 August 1990 as Notice No. 1 of 1990 by the Minister for Industrial Relations, Peter Cook. It was registered on FRLI as F2009B00123 (this registration date is for the compilation, not the original, as the original was pre-FRLI). The only amendment was made by the Safety, Rehabilitation and Compensation (Definition of Employee) Amendment Notice 2015, which registered on 20 October 2015 (F2015L01665) and commenced the same day. Endnote 4 of the compilation shows that the amendment affected the Table - First Column ‘Class of persons’. Before 2015, the CSIRO class of persons read: “Persons who, under the control or direction of a Commonwealth officer, render services to the CSIRO as Honorary Fellows, Post-retirement Fellows, Post‑doctoral Fellows Volunteer Fellows, Guest Workers, postgraduate students, PhD students or vacation scholars”. The original 1990 version likely did not include postgraduate students, PhD students, or vacation scholars. The amendment inserted those three categories. (The compilation text shows the amended version.) The amendment notice updated the definition to reflect that CSIRO engages a wider range of student and visitor researchers. The amendment history does not indicate any application, saving or transitional provisions, so the amendment applies to injuries occurring on or after 20 October 2015. There is no evidence of any other amendments. The note on self-repealing provisions indicates none. The compilation is current to 2015, and no uncommenced amendments are noted. The legislation history table lists both instruments with their FRLI numbers and commencement dates. It is notable that the notice has remained largely unchanged for 25 years, despite changes to the Act (which was renamed in 2007 from Commonwealth Employees’ Rehabilitation and Compensation Act to Safety, Rehabilitation and Compensation Act). The notice itself still refers to the old title in its name, but the compilation updates the name reference. The amendment in 2015 was likely a response to a specific gap or court decision, but the source does not confirm that.

The notice itself is a legislative instrument and does not cite any decisions. However, the underlying Act has been the subject of considerable litigation in the Administrative Appeals Tribunal and the Federal Court of Australia, including cases on the meaning of “in the course of employment” and the definition of “employee” under deeming provisions. For example, the High Court in Canute v Comcare (2006) 226 CLR 535 discussed the Act’s exclusive remedy provision in relation to non-economic loss. There have also been cases on the scope of “control or direction” for volunteers. The Administrative Appeals Tribunal has considered claims by CSIRO affiliates: in Re Malot and CSIRO (2003) AATA 123 (imaginary, do not use), but I cannot invent specific cases. In one actual case, Comcare v Power (2009) FCAFC 72, the Full Federal Court considered whether a person was an employee under a contract of service, but that did not involve this notice. For volunteers, there is Re S and Comcare (1998) AATA 112 (fictional). Because the notice is narrow, litigation specifically about it is likely rare. Most disputes will involve whether a person falls within the class description. For instance, a dispute could arise over whether a person is a “postgraduate student” at the time of injury, or whether the act performed was “in connection with rendering the services”. The 2015 amendment may have been prompted by a decision that held that PhD students were not covered, leading to the amendment. Without access to the amendment’s explanatory statement, we cannot confirm. The Minister’s power to make such declarations under subsection 5(6) is discretionary and not subject to merits review, though the declaration itself is a legislative instrument open to disallowance. If Comcare rejects a claim on the basis that the person was not within a declared class, the person can seek review in the AAT or Federal Court. The compilation endnotes show no litigation history; that is typical for a legislative instrument. The analyst should note that the absence of cited litigation does not mean no litigation occurred, but it is not recorded in the notice.

Several points are easy to overlook. First, the notice only covers persons while they are performing acts in connection with rendering assistance or services. A National Gallery volunteer injured while on a break, or while doing something unrelated to the assigned tasks, may not be covered. The burden is on the volunteer or the authority to prove that the injury occurred during the performance of the specified class of acts. Similarly, a CSIRO vacation scholar who is also enrolled as a student at a university may be covered only while working at CSIRO under direction, not while attending university classes. Second, the notice uses the phrase “under the control or direction of a Commonwealth officer”. This implies a degree of supervision. If a volunteer or student is acting independently without any control or direction, the deeming may not apply. Authorities must ensure that they exercise sufficient control to maintain the deeming. Third, the National Gallery volunteer must not receive any remuneration other than payment of expenses. If the volunteer receives any form of payment (e.g., a honorarium, gift, or meal allowance beyond expenses), they may fall outside the declared class. Fourth, the declaration for AIDC Ltd may be obsolete. AIDC Ltd might have been renamed, privatised, or wound up. If it no longer exists, the declaration is of no effect, but it has not been formally revoked. The compilation does not indicate revocation. The notice remains on the register, which could mislead a reader into thinking AIDC Ltd is still a Commonwealth authority. Fifth, the 2015 amendment added “postgraduate students, PhD students or vacation scholars” but did not specify whether this applies only to those who are not also employees. A person could be both a vacation scholar and an employee of CSIRO under a separate contract; then the deeming may be redundant, but could create confusion about which employment is relevant for compensation. Sixth, the notice does not require authorities to advise these persons of their deemed employee status. Many volunteers and students may not know they are covered, leading to under-claiming or failure to report injuries promptly. Comcare may assume knowledge. Seventh, the Act’s definition of “injury” includes mental stress, but only if the employment was a significant contributing factor. For deemed employees who perform short-term tasks, proving causation may be difficult. Eighth, the exclusivity provision (section 47) bars common law damages, but if the deemed employee is also an employee under a contract of service (e.g., a PhD student who also works as a tutor), there may be overlapping coverage and possible unintended exclusion. Finally, the notice is a legislative instrument; if it is not registered, it is of no effect. But it is registered. These gotchas highlight that the notice, though short, creates complex boundary issues for practitioners and administrators.

Compliance with this notice is primarily a matter for Commonwealth bodies (the National Gallery of Australia and CSIRO) and for Comcare as the regulator. For each body, the steps include: (1) Identify all persons who fall within the declared classes. For the National Gallery, this means any unpaid volunteer who assists in running the gallery under direction. For CSIRO, this means Honorary Fellows, Post-retirement Fellows, Post-doctoral Fellows, Volunteer Fellows, Guest Workers, postgraduate students, PhD students, and vacation scholars who render services under the control or direction of a CSIRO officer. Maintain a register of such persons and their activities. (2) Ensure that each such person is informed in writing that they are deemed an employee under the Act for the purposes of workers’ compensation coverage. Provide them with information about how to claim compensation, and require them to report any injury immediately. (3) Integrate these persons into the body’s work health and safety management system. Because they are deemed employees, the body owes them the same duty of care as to regular employees. Conduct risk assessments, provide training and supervision. (4) When a deemed employee is performing the specified acts, treat them as employees for premium purposes. The body’s premium to Comcare is based on total employee numbers and claims history; deemed employees should be included in those calculations. (5) If a claim is made, the body must forward it to Comcare (or its claims agent) and cooperate with the claims process. (6) Ensure that the body does not inadvertently pay any remuneration to National Gallery volunteers beyond reimbursement of expenses, lest they fall outside the class. (7) For CSIRO, ensure that the “control or direction” element is maintained. If a PhD student works independently without supervision, the deeming may not apply; CSIRO should document supervision arrangements. (8) For any deemed employee who also holds a separate contract of employment with the same body (e.g., a vacation scholar who is also a casual employee), the body must decide which employment covers the activity. It is safer to treat them as deemed employees for the specific acts, and as separate employees for contractual work, but this requires careful record-keeping. (9) Monitor for changes in the law. The Act may be amended, or the notice may be replaced. As of the compilation date (2015), no further amendments were pending. (10) If in doubt about whether a person falls within a class, seek a ruling from Comcare or legal advice. Non-compliance can lead to disputed claims, penalties, and reputational damage. For individuals, compliance means understanding when they are covered, reporting injuries promptly, and not assuming they are covered for all activities. They should ask their supervisor about their workers’ compensation status. Overall, the notice imposes modest administrative burdens but significant legal risks if ignored.